IN THE HIGH COURT OF ZAMBIA
HOLDEN AT LUSAKA
(Criminal Jurisdiction)
HP/215/2010
BETWEEN:
THE PEOPLE
AND
NYAMBE MUSAKANYA
Before the Hon. Mr. Justice Dr. P. Matibini, SC, this 20th day of November, 2012.
For the People: Ms. F. Nyirenda, State Advocate, Director of Public Prosecutions
chambers.
For the Defence:
C. Chanda of Messrs Chanda Chizu and Associates.
JUDGMENT
Cases referred to:
1. Fleet v Metropolitan Asylum District [1881] 6 A.C. 193.
2. Attorney General v Corporation of Nottingam [1904] Ch.D 673.
3. Woolmington v Director of Public Prosecutions [1935] A.C. 482.
4. The People v Sitali (1972) Z.R. 139.
5. Tembo v The People (1972) Z.R. 220.
6. Simutenda v The People (1975) Z.R. 294.
7. Haonga and Others v The People (1976) Z.R. 200.
8. Tabo v The People (1985) Z.R. 158.
9. Njunga and Others v The People (1988-1989) Z.R. 1.
10. Chola and Others v The People (1988-1989) Z.R. 163.
11. Kaunda v The People (1990-1992) Z.R. 215.
12. Mutale v Phiri (1995-1997) Z.R. 227.
13. Murono v The People (2004) Z.R. 207.
14. Njobvu v The People S.C.Z. Number 17 of 2011 (to be reported in the 2011
Zambia Law Reports).
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Legislation referred to:
1. Penal Code, cap 87, ss 200 and207(a).
Works referred to:
1.
Hodge M Malek, Phipson on Evidence, Seventeen, Edition (Thomson Reuters
Legal Limited, 2010).
2.
Steve Uglow, Evidence: Text and Materials, 2nd Edition (London Sweet and
Maxwell 2006)
The accused; Nyambe Musakanya, stands charged with the murder of Harriet
Mulungwe, on 17th May, 2010, contrary to section 200 of the Penal Code. I will continue
to refer to her as the deceased. The prosecution called five witnesses to prove the
commission of the offence.
The first witness was Memory Chibale, aged 27 years. I will continue to refer to her as
PW1. PW1 testified that she lives in Kafue. And shared quarters with the accused, and
the deceased. On the material day; 17th May, 2010, PW1 accompanied the deceased to
the market, around 14:00hours. Whilst at the market, the deceased suggested to PW1
that they watch the television at a bar near the market. In the course of watching the
television, the duo began to imbibe some beer. And only returned home around 22:00
hours.
When they returned home, the accused was in the house, and had locked them out.
The duo knocked on the door. When the accused opened the door, he started shouting
at the deceased; his wife. In the meanwhile, PW1 quickly retreated to her quarters. And
the accused continued shouting at the deceased. In due course, the accused began
beating and kicking the deceased repeatedly. As the beating continued, the deceased
lay on the floor helplessly.
After the beating, PW1 testified that the deceased complained of stomach pains. And
was bleeding from the nose. The deceased requested for some Panado from PW1 to
ease the pain.
At that juncture, the deceased had taken refuge in a adjacent
unoccupied room, as the accused had ejected her from the main bedroom.
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Later, the deceased started vomiting. And also continued to complain about stomach
pains. PW1 returned to her quarters. And heard the deceased continue to complain
about stomach pains. And also plead for help with the accused. The accused retorted
that she should leave, and die elsewhere. Further, PW1 testified that the deceased
requested for some salt from the accused. The accused replied that if the deceased
dared enter the house, he would beat her again. The deceased continued lamenting
about stomach pains.
The following day, around 06:00 hours, PW1 prepared some hot water to enable her
massage the deceased. When the accused woke up, he informed the deceased and
PW1, that he was going out for business. And would return home in two days time. The
accused left home about 06:00 hours. The same morning, PW1 went to notify the
deceased’s cousin, popularly known as Bana Flora (Flora’s mother), about what
transpired.
PW1 returned home with Bana Flora.
When Bana Flora arrived, she
massaged the deceased. In due course, PW1 sent her daughter to call deceased’s
younger sister, also popularly known as Bana Shadreck (Shadreck’s mother). Bana
Shadreck came home around 08:00 hours. Bana Shadreck continued massaging the
deceased. And she also prepared some porridge for the deceased. However, the
deceased refused to eat the porridge. And continued to lament about the stomach
pains.
In the evening of the same day, Bana Shadreck decided to look for money to take the
deceased to the Hospital.
Thus, she went to see Bana Chimunya (the mother of
Chimunya). When she returned home, PW1 found that her neighbour, Bana Golden (the
mother of Golden) had booked a taxi. Eventually, PW1 took the deceased to Kafue
District Hospital. When PW1 arrived at the hospital, the deceased was attended to by a
doctor. The doctor advised that an x-ray should be carried out. After the x-ray, the
deceased was given a blood transfusion. Thereafter, an ambulance was arranged to
transfer her to the University Teaching Hospital (UTH). At UTH, the deceased was
admitted to the general ward. And the doctors immediately administered two drips.
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One for water, and the other for blood. The doctors also inserted some tubes both in
the nose, as well as the private parts of the deceased.
In the small hours of 19th May, 2010, the deceased was taken for an operation. PW1
testified that although she was unaware of the nature of the operation, the operation
was done on her abdomen. After the operation, the deceased was transferred to G.12.
While in G12, the condition of the deceased deteriorated. And on 19th May, 2010, the
deceased passed on at around 19:00hours. PW1 was at her bed side as she died.
Eventually, the matter was reported to the police on 20th May, 2010.
The second prosecution witness was Matildah Mukongwe. And I will continue to refer to
her as PW2. PW2 recalled that on 18th May, 2010, around 06:00 hours, she was
awakened by the accused. The accused requested her to visit the deceased; her sister.
PW2 was hesitant to do so. But later, a young girl came and informed her that the
deceased had been severely beaten by the accused the previous night. PW2 then
made up her mind to visit the deceased. When she arrived at deceased’s home, she
found her. And she complained to her that the accused had beaten her. At the time,
she was still bleeding from her nose. PW2 got some water and started bathing the
deceased. PW2 noticed that she had bruises on the right side of her abdomen. PW2
prepared some porridge for the deceased. However, she refused to eat it.
Around 15:00 hours, PW2 left the deceased in the company of PW1. And went to
search for some money to take her to the hospital. PW2 did not come round to take the
deceased to the Hospital. PW2 was informed the following morning that the deceased
had been taken to Kafue District Hospital, and later transferred to UTH. When PW2
visited the deceased on 19th May, 2010, at around 21:00 hours, she was informed that
the deceased had died. The following morning. PW 2 reported the matter to the police.
PW2 recalled that she had previously seen the deceased on 17th May, 2010. And was
then enjoying good health. But when she later met her the following day, on 18th May,
2010, the deceased was complaining and groaning about stomach pains. And was
bleeding from the nose as a result of the beating she suffered at the hands of the
accused.
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The third prosecution witness was Enesi Lutulula. I will continue to refer to her as PW3.
PW3 recalled that on 19th May, 2010, she was informed by PW2; her daughter, that the
deceased was hospitalised following the beating she suffered at the hands of the
accused. PW3 decided to travel to Lusaka to visit her daughter at UTH. PW3 arrived at
UTH at around 21:00 hours. And was informed that the deceased had passed on the
same evening around 19:00 hours.
The following day; on 20th May, 2010, in the
company of other relatives, PW3 reported the matter to the police.
The fourth prosecution witness was Dr. Dennis Musonda. I will continue to refer to him
as PW4. PW4 has Bachelor of Science degrees in: biology and chemistry; human
biology; surgery; and medicine. All these degrees were obtained from the University of
Zambia.
PW4 has also practiced medicine for a period of 14 years.
pathologist for 10 years.
And as a
PW4 testified that he carried out a post mortem on the
deceased. And the findings of the post mortem were reduced into a report. PW4
recalled that the deceased was a referral case from Kafue District Hospital.
Her
medical history revealed that she had been assaulted by her husband; the accused, the
previous day. At the material time, the deceased complained about abdomen pains.
The surgeons who attended to her on the material date observed that she had a
distended or enlarged abdomen. And had multiple bruises on her body. The diagnosis
of the surgeons was that the deceased had suffered an injury in the abdomen which
required to be operated on.
After the operation, the surgeons observed the following: that there were two litres of
blood stained fluid, together with facael matter in the abdomen. In addition, two sides of
the intestines were perforated. There was also a fibrus and membrane inflammation of
the intestines. That is, the body was reacting to the contents that flowed from the
bowels. The liver and spleen were normal. So were all other internal organs. The
surgeons proceeded to mend the two perforated intestines. And to remove the blood
stained fluid, and faceal matter. On completion of the operation, the abdomen was
sealed.
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Following the operation, the doctors commenced administering medication consisting of
triple anti-biotics; cystapens; gentamycin; and metropidazote.
The doctors also
administered pain killers and injected the deceased with fluids. The deceased was
thereafter monitored very closely.
However, around 16:20, hours the deceased’s
condition deteriorated. Her temperature fell below the normal reading. And her blood
pressure could not be read at all. At that juncture, a dire diagnosis was made; she had
suffered from scepticaemic shock. And the deceased died the same day.
Six days later; on 24th May, 2010, PW4 conducted the post mortem. Externally, PW4
observed that the deceased was a young adult female, who was well nourished. And
had suffered from central and referral cyanosis. That is, a condition of reduced amount
of oxygen saturation of blood.
PW4 also made the following observations: the
deceased had a healing wound on the left side of the abdomen.
reparatory of a wound.
She also had
(a wound arising from the operation conducted by the
surgeons.) The wound measured 30cm, and carried 15 stitches. The soft tissue in the
neck area and chest showed signs of bleeding.
During the post mortem, PW4 opened the whole body. PW4 observed that the brain,
mouth, tongue, esophagus, and most of the organs of the chest were intact and healthy
looking.
In the abdomen area, PW4 noticed that the reaction to the injury had
continued. There was pus overlying the intestine. The rest of the bowels both small
and large, had clumped; a condition known as a “frozen abdomen.” As a result of the
operation, PW4 also noticed signs of repair of the small bowels. The liver, pancreas,
and other organs of the abdomen were intact, and healthy looking.
Following, the post mortem, PW4 concluded that there were two causes of death. First,
was the scepticaemic shock, or overwhelming infection.
Second, was perforated
bowels, or intestines. PW4 recalled that before the deceased died, the intestines were
perforated. As a consequence of the perforation, bacteria leaked into the abdomen
cavity, and caused the infection. PW4 also pointed out that when bacteria gains access
to the circulatory system, it causes speticeamic, and expands the circulatory system,
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resulting in reduced circulatory volume. Granted the medical history of the deceased,
DW4 opined that the perforation was caused by the injury to the stomach. He also
attributed the bleeding around the neck area to the assault.
The fifth prosecution witness was Detective Constable Fred Jimaima. I will continue to
refer to him as PW5. PW5 recalls that on 24th May, 2010, he was assigned a docket to
investigate a case of murder contrary to section 200 of the Penal Code. The docket,
contained a statement by PW1, that on 17th May, 2010, around 22:00 hours, they
returned home from the Market with the deceased. Upon reaching home, the deceased
picked a quarrel with the accused. In due course, she was beaten by the accused.
After the beating, the deceased complained of stomach pains and bled from the nose.
On 18th May, 2010, the deceased was taken to Kafue District Hospital. And shortly
thereafter transferred to UTH. And on 19th May, 2010, she passed on. PW5 testified
that on 24th May, 2010, he attended the post-mortem, which was conducted by PW4.
During the post-mortem, PW5 observed that the deceased had reddish skin on the joint
of the left hand.
Upon concluding the post-mortem, PW5 interviewed the accused. The accused denied
having beaten his wife. The accused maintained that he simply pushed her. And in the
process she fell down on the verandah. PW5 was not satisfied with the explanation
offered by the accused. And therefore decided to charge him of the offence of murder.
A warn and caution was administered. And the accused gave a free and voluntary
reply, denying the charge.
At the close of the prosecution case, I formed the opinion that the prosecution had
established a prima facie case. Accordingly, I put the accused on his defence.
However, the accused elected to remain silent, and not to offer any evidence. I must
mention here that there is no obligation on an accused person to give evidence. And
where an accused person elects not to give evidence, the Court should not speculate as
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to possible explanations for the event in question. The Court’s duty is to draw the
proper inference from the evidence it has before it. (See Simutenda v The People
(1975) Z.R. 294 at page 297, per Baron D.C.J.).
On 21st April, 2011, Ms Nyirenda filed into Court the prosecution’s final submissions. In
the submissions, Ms Nyirenda pointed out at the outset that in criminal matters the
burden of proof lies on the prosecution to prove a criminal charge beyond reasonable
doubt. After reciting the evidence of PW1 to PW5 referred to above, Ms Nyirenda
submitted as follows: that in a case of murder, the prosecution has to prove that the
accused murdered the deceased. And also that in doing so, had the intention to commit
the murder. The intention can either be express, or imputed. Imputed intention can be
inferred from the actions of the accused, and the type of injuries that are inflicted on the
deceased.
Ms Nyirenda pointed out that malice aforethought; an essential ingredient of the offence
is in terms of section 204 of the Penal Code, expressed in these words:
“Malice aforethought shall be deemed to be established by evidence proving any one or
more of the following circumstances:
a) An intention to cause death of or to do grievous harm to any person, whether
such person is the person actually killed or not;
b) Knowledge that the act or omission causing death will probably cause the death
of or grievous harm to some person, whether such person is the person actually
killed or not although such knowledge is accompanied by indifference whether
death or grievous bodily harm is caused or not or by a wish that it may not be
caused.
c) An intent to commit a felony;
d) An intention by the act or omission to facilitate the flight or escape from custody
of any person who had committed or attempted to commit a felony.”
Ms Nyirenda argued that from the evidence of PW1, it is clear that the accused beat the
deceased several times.
And particularly kicked her in the abdomen area with his
shoes. It was his actions that caused the grievous bodily harm to the deceased. And
thereafter qualified as malice aforethought.
Ms Nyirenda pressed that the accused
should have known or actually knew the consequences of his actions. And thus did
intend to cause grievous bodily harm to the deceased.
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In the course of the submissions, Ms. Nyirenda drew my attention to the case of The
People v Sitali (1972) Z.R. 139, where Muwo, J, observed at pages 147 – 148 as
follows:
“The act was done with the knowledge that he would inflict grievous bodily harm, taking
into account the manner in which he executed this assault upon this woman. I find that
the prosecution has discharged its burden of proof to the hilt. There is nothing that
would have persuaded me to find him guilty of manslaughter.”
Further, Ms Nyirenda argued that the severity of the assault can also be discerned from
the evidence of the medical doctor; PW4, who testified that the deceased sustained
several bruises on her body, and suffered a perforated bowel. In the circumstances, Ms
Nyirenda reiterated that the accused formed the intention sufficient for him to be
convicted of the offence of murder.
In the end, Ms. Nyirenda argued that the
prosecution has discharged its burden to prove that the accused caused the death of
the deceased by committing an unlawful act with malice aforethought. And thus must
be convicted of the subject offence.
On 26th April, 2011, Mr. Chanda filed into Court the final submissions on behalf of the
accused. Mr. Chanda prefaced the submissions by stating that if there is one thing
more than anything else that has been established in criminal law which requires no
elaboration, is that for there to be a conviction on any offence, the prosecution always
bears the onus to prove the guilt of an accused person throughout the trial. And that
proof must be beyond all reasonable doubt. There is no onus whatsoever on the
accused to prove his, or her innocence.
Mr. Chanda submitted that the preceding principle was enunciated in the celebrated
case of Woolmington v Director of Pulic Prosecutions [1935] A.C. 462, at page 481.
This fundamental principle, Mr. Chanda submitted, has in the Zambian context been
affirmed by the Supreme Court in the case of Murono v The People (2004) Z.R. 2007,
where it was held at page 210 as follows:
“In criminal cases, the rule is that the legal burden of proving every element of the
offence charged, and consequently the guilt of the accused, lies from the beginning to
end on the prosecution. The standard of proof is high. The case must be proved
beyond reasonable doubt.”
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Mr. Chanda submitted that in this case, the prosecution was required to prove beyond
reasonable doubt that the accused by an unlawful act or omission, and with intention to
kill, did in fact kill the deceased.
Mr. Chanda pointed out that where there is any
lingering doubt of the guiltiness of the accused, that doubt must be resolved in favour of
the accused.
Mr. Chanda argued that from the totality of the evidence, the only material witnesses
are PW1 and PW4; the pathologist. In analysing PW1’s testimony, Mr. Chanda was
struck as to how detailed PW1 was about her testimony. Yet when the events were still
very fresh in her mind; when giving her statement to the police, she did not disclose that
she saw the accused kick the deceased. But rather, she was told by the deceased
herself that the accused kicked her.
Mr. Chanda also argued that it is doubtful that PW1 saw the accused kick the deceased
because it was dark in the living room. Even assuming that there was sufficient light in
the living room from the neighbour’s premises to enable PW1 witness the accused kick
the deceased in the abdomen; then they would have been no need for PW1 to ask the
accused to give her the light. It was only after she had been given the light that she saw
the deceased bleeding.
Thus Mr. Chanda maintained that PW1 did not see the
accused kick the deceased in the abdomen because it was dark.
Mr. Chanda pointed out that when PW1 was pressed in cross-examination on the prior
statement she gave to the police regarding the accused kicking the deceased, and
contrasted that statement with what she testified in Court, PW1’s explanation was that
although she signed the statement, it was never read back to her by PW5; the arresting
officer. Mr. Chanda argued that this explanation cannot be accepted because she did
not demonstrate the motive of PW5 in not reading the statement back to her.
Mr.
Chanda argued that in fact PW5, both in cross-examination, and re-examination
maintained that after taking the statement from PW1, PW5 read back the statement
before she signed it. Mr. Chanda submitted that this was clearly a lie.
And was
intended not only to misled the Court, but also to demonstrate that this witness was not
being truthful.
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Furthermore, Mr. Chanda, argued that PW1 in her statement to the police, concealed
the fact that the deceased and herself had been drinking beer. Mr. Chanda submitted
that PW1’s testimony on this material fact to the charge was a concocted version of the
events to suit and serve her personal interests, since she was the last person who had
stayed with the deceased before the incident happened.
Mr. Chanda argued that given the peculiar circumstances, and the friendship PW1
enjoyed with the deceased, it was not safe to convict the accused on the basis of her
testimony. Her evidence needed to be corroborated with another independent witness.
In advancing this submission, Mr. Chanda drew my attention to the case of Chola and
Others, v The People (1988-1989) Z.R. 163, in which the Supreme Court made the
following observation at page 166:
“In the case where the witnesses are not necessarily accomplices, the critical
consideration is not whether the witnesses did in fact have an interest or purpose of
their own to serve, but whether they were witnesses who because of the category into
which they fell or because of the particular circumstances of the case, they may have
had a motive to give false evidence. Where it is reasonable to recognise this possibility,
the danger of false implication is present and it must be excluded before a conviction
can be held to be safe.”
Mr. Chanda also drew my attention to the case of Kaunda v The People (1990-1992)
Z.R. 215, where the Supreme Court held at page 224 that:
“prosecution witnesses who are friends or relatives of the prosecutrix may have a
possible interest of their own to serve and should be treated as suspect witnesses. The
Court should warn itself against the danger of false implication of the accused and go
further to ensure that the danger has been exluded.”
In view of the foregoing, Mr. Chanda argued that there is a real likelihood of PW1 falsely
implicating the accused of having kicked the deceased, when she did not witness that
fact. And yet her statement to the police which she gave freely and voluntarily indicated
that it was the deceased who told her that she was kicked by the accused. In light of
the counsel from the Chola (supra) and Kaunda (supra) cases, Mr. Chanda submitted
that the testimony of PW2 equally falls within that category of tainted evidence which is
not safe to rely on. Mr. Chanda also pointed out that PW2, who is not a medical or
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health practitioner does not qualify to attest to the health condition of the deceased
whom she saw before the alleged beating.
As regards PW4, Mr. Chanda observed that his findings were recorded in the postmortem report which was admitted in evidence as P1. In this report, Mr. Chanda noted,
is a summary of the medical history of the deceased, and the treatment she received
until the time of her death.
PW4 also recorded his findings after conducting the
examination of the body; both externally and internally. Mr. Chanda submitted that the
length and breadth’s of PW4 evidence is that the deceased complained of abdominal
pains, and disclosed a history of an assault. When the operation was done, Mr. Chanda
submitted, the surgeons discovered two perforation of the small intestines, while the
other organs of the chest were intact. Mr. Chanda noted that according to the findings
of PW4, the cause of death was septicaemic shock, which was due to the perforated
bowels, and also cardiac arrest. PW4 Mr. Chanda noted, defined septicaemic shock as
an overwhelming infection in the blood.
PW4, also suspected that the assault as
presented in the medical history of the deceased could have caused the bowels to
perforate. And that the abdominal trauma in turn caused the perforation. Mr. Chanda
submitted that under the pain of cross-examination, PW4 became evasive when
answering certain simple and straight forward questions.
In analysing the evidence of PW4, Mr. Chanda focused on the opinion of PW4, that the
death of the deceased was due to septicaemic shock, owing to perforated bowels. Mr.
Chanda observed that during cross-examination, PW4 conceded that septicaemic
shock was treatable. However, Mr. Chanda noted that PW4 opined that such treatment
was rarely carried out because it took time to diagnose the condition. And is, in any
event, preceded by several tests. Mr. Chanda argued that with the greatest respect to
PW4, his opinion was questionable because in this case, the surgeons were able to
diagnose septiceamic shock immediately the symptoms presented themselves. And
PW4 was also during the post-mortem able to form the opinion that the cause of death
was septicaemic shock without conducting a battery of tests as earlier on claimed by
PW4.
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Mr. Chanda also pointed out the following : that PW4 when cross-examined on what
caused the perforation of the bowels, he insisted that it was the trauma or blow to the
stomach. However, he conceded that it was not easy to cause a perforation by a blunt
trauma. Further, PW4 admitted that it required a severe blow to cause perforation. But
was not able to state the magnitude of the impact that was inflicted on the deceased for
him to state categorically that in this case, the perforation was caused by a blunt
trauma.
Mr. Chanda pressed that PW4’s opinion that the blunt trauma caused the perforation is
highly doubtful, because it cannot be suggested that once a blunt trauma is inflicted with
such severe impact, it can cause perforation.
Mr. Chanda argued that logically
speaking, a blunt trauma, as opposed to a sharp trauma, can only cause a laceration.
Further, Mr. Chanda opined that even assuming that the accused kicked the deceased
in the abdomen, it is doubtful that the kicks could have caused the bowels to perforate.
The least that was expected was for the bowels to lacerate or rapture as opposed to
perforate.
The perforation, Mr. Chanda submitted, implies that the bowels were
punctured. And could only have been punctured by a sharp trauma.
Mr. Chanda also argued that if the trauma was the cause of the death, the spleen, the
liver, the kidneys, and the pancreas would also have been affected.
However,
according to the surgeons who operated on the deceased, these organs were found to
be normal and healthy. Similarly, during post-mortem PW4 also found these organs to
be normal and healthy. Mr. Chanda maintained that it is incredible that these findings
could be consistent with a blunt trauma. And it is a wonder, Mr. Chanda submitted, that
such an impact could have been so selective that it by passed all these organs, and
only perforated the intestines. In view of the foregoing, Mr. Chanda opined that the
perforation was not caused by the trauma. Mr. Chanda suggested that the perforation
was caused internally.
Mr. Chanda also submitted that when PW4 was asked in cross-examination whether the
peroration could have been caused by other factors other than the trauma, he replied
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there were none. However, when PW4 was reminded that the perforation could be
caused by typhoid; which is an infection of the stomach, and also causes stomach
pains, PW4 conceded that typhoid also causes perforation of the bowels. In light of the
foregoing, Mr. Chanda submitted that it is possible that the deceased could have
suffered from typhoid, which also causes the perforation of bowels. Mr. Chanda argued
that he was fortified in making this suggestion, because the deceased not only
complained of stomach pains, but more importantly, all the other organs, the spleen;
liver; kidneys; and the pancreas, were intact, normal, and healthy.
Further, Mr. Chanda submitted that the suggestion that the deceased may have
suffered from typhoid is fortified by the presence of pus which PW4 detected, and
admitted that it signified an infection. Mr. Chanda opined that the infection could have
been caused by the typhoid. In this regard, Mr. Chanda urged me to take judicial notice
of the fact that surgeons use sterilized instruments in order to avoid infections during the
course of the operations. Therefore, Mr. Chanda suggested that the presence of pus
confirms that the infection of the bowels took place long before the alleged assault, and
the operation. Mr. Chanda contends that the medical history of the deceased, and the
reference to the assault in particular, may have prejudiced the diagnosis, and the
findings by PW4. Mr. Chanda was inclined to make this assumption, because PW4
constantly referred to the medical history of the deceased to support his opinion. Mr.
Chanda reiterated, and pressed that it is highly probable that the deceased may have
suffered from typhoid which was not diagnosed.
Mr. Chanda also observed that PW4’s diagnosis that a cardiac arrest may have been a
secondary course of death, relied on the swelling of the diaphragm, and on how the
intestines may have adversely affected the breathing. But with the greatest respect to
PW4’s opinion, Mr. Chanda contends that there is no evidence to show that the
deceased had difficulties in breathing; a situation if it had arisen, would have been
remedied by supplying the deceased with oxygen. Mr. Chanda further observed that
PW4 indicated that septicaemic shock is evidence of overwhelming infection in the
blood stream. And as conceded in cross-examination, PW4 explained that in this case
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there was a reduced supply of oxygen to the brain. And hence the cardiac arrest. Mr.
Chanda submitted that from a lay point of view, all deaths regardless of their cause are
connected in some way with the heart failing to pump blood.
Lastly, Mr. Chanda
submitted that the suggestion during cross-examination by PW4 that the death of the
deceased may have been due to typhoid, or the presence of pus as a result of an
infection, and not blunt trauma, was not seriously challenged or explained during reexamination.
After analysing the evidence of PW4, Mr. Chanda proceeded to consider the law
relating to murder. Mr. Chanda submitted that the issue that exercises the minds of the
Courts in cases of murder, and attempted murder is proof of the intention of the
accused to kill.
Mr. Chanda submitted that in this case none of the prosecution
witnesses testified that the accused had the intention to kill the deceased. In fact, Mr.
Chanda argued that the prosecution in their final submissions relied on section 204 of
the Penal Code to suggest that the accused had the requisite malice aforethought to
sustain the charge of murder by focusing on the character of the injuries sustained. In
this regard, Mr. Chanda noted that the prosecution drew my attention to the case of the
People v Sitali (1972) Z.R. 139, where Muwo J, observed at pages 147-148 that:
“The act was done with the knowledge that he would inflict grievous bodily harm taking
into account the manner in which he executed his assault upon this woman. I find that
the prosecution discharged its burden of proof to the hilt…”
Mr. Chanda noted that in the Sitali case (supra) the prosecution sought to prove malice
aforethought on the basis of the alleged beating. Mr. Chanda posited that the cardinal
question in this case is whether or not the accused intended to kill the deceased. The
answer to this question, Mr. Chanda submitted, is in the negative. Mr. Chanda argued
that the accused cannot be said to have intended to cause grievous bodily harm when
he never used any weapon to execute such intention.
In summary, Mr. Chanda submitted that the evidence on record shows that there is
possibility that the perforation of the bowels could have been caused by typhoid;
granted the presence of pus, and the fact that the other internal organs were intact and
J15
healthy. The existence of this possibility, Mr. Chanda argued, demonstrates that the
prosecution has not discharged its burden of proving the guilt of the accused beyond
reasonable doubt. In view of the lingering doubt, Mr. Chanda submitted that the doubt
must be resolved in favour of the accused. In aid of this submission, Mr. Chanda relied
on the case of Mutale v Phiri (1995-1997) Z.R. 227, where it was held that: where there
are lingering doubts, the Court is required to resolve such doubts in favour of the
accused.
I am indebted to counsel for the spirited arguments and well researched submissions. It
is trite that in criminal matters the burden of proof lies on the prosecution to prove a
charge beyond reasonable doubt. In the case of murder, the prosecution has to prove
that the accused murdered the deceased, and did so with malice aforethought. If upon
the whole of the evidence the Court is not satisfied that the guilt of the accused has
been proved to the requisite standard, then an accused is entitled to an acquittal.
Section 204 of the Penal Code defines “malice aforethought” in the following terms:
“204 Malice aforethought shall be deemed to be established by evidence proving any
one or more of the following circumstances:
(a)
an intention to cause death or to do grievous harm to any person, whether such
person is the person actually killed or not;
(b)
knowledge that the act or omission causing death will probably cause the death
or a grievous harm to some person, whether such person is the person actually
killed or not, although such knowledge is accompanied by indifference whether
death or grievous bodily harm is caused or not or by a wish that it may not be
caused;
(c)
an intent to commit a felony;
(d)
an intention by the act or omission to facilitate the flight or escape from custody
of any person who has committed or attempted to commit a felony.
In this case a key witness was PW1, a friend and neighbor to the deceased. Generally,
Mr Chanda, counsel for the accused, has impeached the truthfulness of the testimony of
PW1. I will in due course deal with the arguments and submission relating to the
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testimony of PW1. At this juncture I will proceed to outline the approach adopted by
Courts when considering the evidence of a witness.
When considering the evidence of a witness, who is proved to have lied in material
respects, it is essential to bear in mind that unless the untruthful portions of the
evidence go to the root of the whole story to such an extent that the remainder cannot
stand alone, such remainder is entitled due consideration. It must however be noted
that the weight of the remainder is of course affected by the fact that the witness has
been shown to be capable of untruthfulness. But the remainder must still be considered
to see whether it might reasonably be true. It cannot be rejected out of hand. (See
Tembo v The People (1972) Z.R. 220 at page 226, per Baron J.P.) I must however
hasten to add that where the remainder of the evidence is able to stand alone, there
must be very good reason for accepting the evidence of such a witness. (See Haonga
and Others v The People (1976) Z.R. 200 at page 205, per Baron D.C.J.)
In this case, I have also been urged by Mr Chanda to treat the evidence of PW 1 with
caution because she may have some interest to serve. In this respect it is instructive to
recall the counsel of Ngulube D.C.J in the case of Chola and Others v The People
(1988-1989) Z.R.163, at page 166, that the critical consideration is not whether the
witnesses did in fact have interest or purposes of their own to serve. But whether they
were witnesses who because of the category into which they fell, or because of the
particular circumstances of the case, may have had a motive to give false evidence.
Ngulube, D.C.J., went on to counsel that where it is reasonable to recognise this
possibility, the danger of false implication is present, and it must be excluded before a
conviction can be held to be safe. In other words, once this is a reasonable possibility,
their evidence falls to be approached as of accomplices. In view of the foregoing, I
warn myself in this case against the danger of false implication of the accused.
Mr Chanda submitted that on the facts of this case, the only material and key witnesses
are PW1 and PW4; the deceased friend and pathologist respectively.
impeached the testimony of PW1 on the following grounds:
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Mr Chanda
First, when given an
opportunity to give statement, she did not disclose to the police that she saw the
accused kick the deceased. Second, that it is doubtful that PW1 saw the accused kick
the deceased because it was dark. Third, that PW1 concealed to the police the fact that
she had been drinking beer with the deceased because she had a personal interest to
serve. Lastly, that given the peculiar circumstances and friendship PW1 enjoyed with
the deceased, it was not safe to convict the accused on the basis of the testimony of
PW1.
I believe the testimony of PW1 that she saw the accused beat the deceased because,
first, the scuffle began in the verandah where PW1 was present. Second, PW1 was
able to see the accused beat the deceased because there was some light from the
neighbour’s premises.
Mr Chanda equally impeached the testimony of PW4 on the following grounds. First,
that PW4 opined that the death of PW4 was due to septicaemic shock, owing to
perforated bowels. Yet during cross-examination, PW4 conceded that it was not easy
to cause a perforation by a blunt trauma – it required a severe blow to cause a
perforation.
Second, even assuming that the accused kicked the deceased in the
abdomen, it is doubtful that the kicks could have caused the bowels to perforate. The
least that was expected, he submitted, was for the bowels to lacerate or rapture, as
opposed to perforate. Because perforation implies that bowels were punctured. Third,
if the trauma was the cause of the death, the spleen, liver, kidneys; and the pancreas
would also have been affected. However, during the post mortem, these organs were
found to be normal and health. Thus it was incredible that these findings could be
consistant with a blunt trauma.
Fourth, during cross-examination, PW4 conceded that the perforation could have been
caused by typhoid; which is an infection of the stomach, and also causes stomach
pains. Thus Mr Chanda maintained that it was possible that the deceased could have
suffered from typhoid, which also causes the perforation of bowels. In addition, he
argued that the suggestion that the deceased may have suffered from typhoid was
J18
reinforced or fortified by the presence of pus which PW4 detected, and admitted that it
signified an infection. And the presence of pus also suggested that the infection of the
bowels took place long before the alleged assault and the operation. At any rate, I was
urged to take judicial notice of the fact that surgeons use sterilised instruments in order
to avoid infections during the course of the operations. Lastly, it was noted that PW4
diagnosed that a cardiac arrest may have been a secondary cause of death because of
the swelling of the diaphragm. And the intestines may have adversely affected the
breathing. Yet there was no evidence to show that the deceased had difficulties in
breathing; a situation it had arisen would have been remedied by supplying the
deceased with oxygen.
It is quite clear from the preceding submissions that the resolution of this matter to a
large extent depends on opinion evidence of PW4. It is therefore necessary to devote
sometime to consideration of the subject of opinion evidence.
According to Steve
Uglow, Evidence: Text and Materials, 2nd Edition, (London, Sweet and Maxwell, 2006),
at page 675, witnesses are expected to give evidence of what they have seen, heard,
smelt, felt or touched; direct evidence of their own perceptions. The learned author
goes on to observe still at page 675, that the inferences or conclusions that witnesses
draw from those perceptions are not their perceptions, but their opinions or beliefs.
These are not admissible to prove the truth of what is believed or inferred.
Hodge M Malek, in Phipson on Evidence, Seventeen Edition, (Thomson Reuters (Legal)
Limited, 2010), explains the exclusionary rule, in paragraph 33-01, at page 1070, in
these words:
“The opinions, inferences or beliefs of individuals (whether ingresses or not), are
inadmissible in proof of material facts. Evidence of this nature is sometimes said to be
excluded by the hearsay rule; but it, in general inadmissible whether delivered on oath
or not.”
The learned author goes on to state in paragraph 33-01 at page 10-70 that:
“The grounds commonly assigned for the rejection of the opinion evidence are that the
opinions in so far as they may be founded on no evidence or inadmissible evidence are
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worthless, and in far as they may be founded on admissible evidence tend to usurp the
functions of the tribunal whose province alone is to draw conclusions of law and fact.”
The learned author of Evidence: Text and Materials, (supra) explains the rationale for
the exclusionary rule in the following terms at page 675:
1.
Lack of probative weight.
Opinions are seen as having little probative weight. A bare opinion by itself has little if
any probative weight. But an opinion can acquire weight. First, a witness may base an
opinion on knowledge and such a witness may be able to testify to those facts on which
the opinion is based. Second, the very status of the witness may cause the Court give
greater credence to an opinion – but it is only the status as an expert that will allow that
opinion to be heard in Court. Third, the opinion may be commonly held by a number of
people.
2.
Usurping the function of the finder of fact.
A further reason for excluding a witnesses opinion is that such testimony usurps the
function of the finder of fact whose task is to draw the necessary inferences from the
evidence. The trier of fact is free to reject an opinion. The policy behind the rule is to
ensure that the trier of fact is not deduced into an easy acceptance of a convincingly
presented opinion.
3.
The risk of inadmissible evidence.
A third reason for exclusion is that a witnesses’ opinion can often be based on evidence
which if stated expressly would be inadmissible for one reasons or another.
The learned of author of Evidence: Text and Materials (supra), concludes at page 680,
that the key exception to the rule excluding opinion evidence is that regarding expert
witnesses where an issue in front of the Court calls for special skill or knowledge which
a judge does not posses, an expert witness will be allowed to present technical
information and express an opinion on its significance.
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To illustrate the point made by the learned authors of Phipson on Evidence (supra), and
Evidence: Text and Materials (supra), above, in the Zambian context, I will advert to the
case of Mwelwa v The People (1975) Z.R. 166; a decision of the Supreme Court. The
facts of the case were that the appellant a driver of a truck, was convicted in the High
Court of causing death by dangerous driving. During the journey giving rise to the case,
and eventual conviction, the appellant stopped at a bar to imbibe some beer.
He
thereafter continued with the journey. And at a bend, the truck veered off the road, and
after travelling a further 292 feet; including crossing a side road, overturned. One of the
passengers died as a result of the injury received in the accident. The trial judge found
that:
(1)
the appellant was driving too fast to control his vehicle;
(2)
he had taken more beer than he should have done and was not sober as he
should have been; and
(3)
that he disregarded a road warning sign.
On appeal, counsel for the appellant advanced two grounds of appeal. First, that the
witness who gave evidence as to the amount of alcohol did not accompany the
appellant to the bar, and the therefore were giving opinion evidence as to his sobriety.
Second, that the witnesses were equally giving opinion evidence as to speed.
In
respect of both aspects, counsel submitted that first, the evidence in question being
opinion evidence was not admissible and should not have been relied upon. Second,
that the accident may have happened as a result of some mechanical defect, or
because of a skid.
In delivering the judgment on behalf of the Supreme Court, Baron D,C.J, observed at
page 169, that it is quite clear that witnesses who do not qualify as experts should not
be permitted to give their opinion on the very issues which the Court is called upon to
decide; but in order to arrive at its decision, the Court is entitled to rely on factual
evidence, by non – expert witnesses. Thus an expert must help the Court to achieve
J21
the overriding objective of giving unbiased opinion on matters within his expertise. In
essence, an expert is a servant of the Court.
In another case of Attorney General v Corporation of Nottingham [1904] Ch.D 673,
Farewell, J, in dealing with a case where the medical profession was divided into two
camps on a scientific question, adopted the statement by Bowen, L.J., in Fleet v
Metropolitan Asylum District [1881] 6 A.C. 193 as follows:
“It would be most dangerous to form an independent opinion on a scientific question
from the smattering of science that might be picked up during a hearing of a case.”
In this particular case there are insufficient facts and reasoning given by PW4 to enable
me to base or refute the inferences and conclusions that Mr Chanda has suggested in
extensio.
And conversely, it would not be prudent for me to form an independent
opinion on complex medical subjects, on the basis of submissions by counsel. Rather
than proffer the various opinions in the submissions on complex medical subjects, Mr
Chanda should have in my considered opinion summoned competing medical testimony
to buttress his submissions, as well as to provide me factual material on which I could
base an independent opinion. In a word, I do not accept the suggestions put forward by
Mr Chanda as to the cause of death of the deceased.
In my opinion, the death of the deceased followed the assault inflicted by the accused.
And in this regard it is instructive to note that in terms of section 207(a) of the Penal
Code, a person is deemed to have caused the death of another person although his act
is not the immediate and sole cause of the death, if he inflicts bodily injury on another
person in consequence of which that person undergoes surgical or medical treatment
which causes death. In such a case it is immaterial whether the treatment was proper
or mistaken, if it was employed in good faith and with common knowledge and skill; but
the person inflicting the injury is not deemed to have caused the death if the treatment
which was its immediate cause was not employed in good faith or was so employed
without common knowledge or skill.
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In this case, there is no suggestion or allegation that the death of the deceased was
caused by treatment which was not employed in good faith or was employed without
common knowledge or skill.
Further, it is equally instructive to refer to the case of Njunga and Others v The People
(1988-1989) Z.R. 1. In the Njunga case (supra) the Supreme Court laid down at page 3
that where there is evidence of assault followed by death without the opportunity for a
novus actus intervenies, a Court is entitled to accept such evidence as an indication that
the assault caused the death. This principle was recently affirmed by the Supreme
Court in Njobvu v The People S.C.Z Judgment Number 17 of 2011.
In this case it is also self-evident that the prosecution relied on section 204(b) of the
Penal Code to press for the conviction – section 204(b) enacts that:
“204(b) Malice aforethought shall be deemed to be established by evidence proving any
one or more of the following circumstances:
(a)
[Not relevant]
(b)
Knowledge that the act or omission causing death will probably cause the death
of or grievous harm to some person whether such person is the person actually
killed or not, although such knowledge is accompanied by indifference whether
death or grievous bodily harm is caused or not, or by a wish that it may not be
caused.
(c)
[Not relevant]
(d)
[Not relevant]
In addition to section 204 (b) of the Penal Code, the prosecution also relied quite heavily
on the case of The People v Sitali (supra), where Muwo, J, observed at page 147 that:
“The act was done with the knowledge that he would inflict grievous bodily harm taking
into account the manner in which he executed this assault upon this woman. I find that
the prosecution has discharged its burden of proof to the hilt. There is nothing that
would have persuaded me to find him guilty of manslaughter. I convict him under
section 177 of the Penal Code. As this is a capital offence of death, to hang by the neck
until he is dead, accordingly passed.”
In considering the Sitali case (supra), it is instructive to note also the observation of
Muwo, J, at page 147 as follows:
J23
“In this case I find that the accused did not only kick the deceased in the face with a
booted foot, causing her to fall to the ground, he severely applied greater force with a
kick to the head of the deceased. He proceeded on ferociously and violently and struck
her with the stick and brick exhibited in Court. In doing so, the accused should have
realised that his act would probably cause the death on a grievous harm to the
deceased, though he may not have had intention to cause the death of or to do grievous
harm to her.”
Clearly, in the Sitali case (supra), not only did the accused kick the deceased with a
booted foot, but proceeded on ferociously and violently to strike the deceased with a
stick and a brick.
To this end, the extent and nature of violence inflicted on the
deceased in the Sitali case (supra) by the accused is in my opinion clearly
distinguishable from the present case.
On the facts of this case, I am however satisfied that the death of the deceased followed
the assault inflicted by the accused. I am also satisfied that on the facts of this case
malice aforethought has not been proved. Accordingly, I find that the accused is guilty
of the offence of manslaughter, contrary to section 199 of the Penal Code.
accordingly convict him.
___________________________
DR P MATIBINI, SC.
HIGH COURT JUDGE
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And I